The Law Offices of Gordon P. Firemark » Asked & Answered

Asked and Answered: Do I need to clear rights for a historical film set in the 1700s?

Gordon Firemark — Fri, 23 Jul 2010 06:00:48 +0000

Q: I am currently researching a story that occurred in the 1700s in France. I have used a number of different sources to put together a time-line of the heroine’s life, from which I have plotted out the story. My question is, do I need to obtain any rights, given that the story occurred more than 200 years ago and I am simply using the research to determine factual events?

Also, once I have written the script, I am hoping to enter it into a screenplay competition. Am I able to describe it as an original work even though it is based on a true story, given that I have come up with the structure and created composite characters and the like?

A: The short answer is: “Probably Not”. Given that the persons depicted in the story have been dead for more than 100 years, it is unlikely that anybody could succeed in bringing a lawsuit against you for telling the story. Of course, I’m not familiar with the laws of every jurisdiction, and it’s possible that France or some other country has a peculiar law that might give rise to a lawsuit, so it’s worth having an attorney research the situation a bit… but, basing your story on a person who lived hundreds of years ago, and with the events corroborated from multiple sources is about as safe as you can get when writing about true people and events.

It’s probably appropriate to characterize your work as an original screenplay, but you should also be clear that it’s ‘based on the life of…’ or ‘based on true events…’. If you fail to disclose this, you might find yourself disqualified from competition, or worse, refunding the prize if you’re later found out. Full disclosure is usually the best approach.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.

Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse

Asked and Answered: When are friends and family co-authors?

Gordon Firemark — Fri, 09 Jul 2010 07:12:07 +0000

Q: Writers are encouraged to share their work with friends and family prior to submitting to publishing or film industry professionals. At what point does a family member’s or friend’s contribution considered sufficient to be considered collaboration? In other words, if a family member suggests changes that results in a substantial re-write, is that sufficient to warrant inclusion as co-author or collaborator? Should authors have an agreement with family members or friends who comment on their work to specify what types of contributions will result in a copyright and compensation arrangement?

A: In order for a work to become a “joint work” under copyright law, there are two elements that must be satisfied. First, the contribution of each purported author must be independently copyrightable, and second, the parties (all of them) must have manifested the intent that the results and proceeds of their contributions would be a work of joint authorship.

In the situation where a friend, family member, agent, or even a producer suggests changes, offers ideas, or helps shape a concept, the test fails on the first prong… ideas, suggestions, and concepts are not copyrightable subject matter. Similarly if the material isn’t “fixed” (i.e., written down or otherwise recorded in some medium), it is not copyrightable.

The second prong of the test really depends on the factual situation. Again, where a friend makes suggestions, or a family member offers an idea, it’s unlikely that any of the parties have the intent to be treated as co-authors or collaborators. In most of the cases where joint authorship is found, the required intent comes from shared credit.

So, once you agree to give a shared or courtesy credit to someone who offers input, you open the door to the possibility that you’ll have to share ownership of the material, and the money that it generates.

Of course, the best practice would be either to NOT accept or incorporate input from friends and family. The next best approach is to very clearly establish that it is and will remain YOUR script, and that you won’t be sharing any of the proceeds from its exploitation.

Asked and Answered: What happens to my rights when I change the title?

Gordon Firemark — Fri, 02 Jul 2010 06:00:01 +0000

Q: I’ve sent my script to an agency and have got response they wanna represent me. The CEO of agency advices to do grammar edit and to change the title of the script.
I’ve registered my rights with original title in WGA and Copyright as well. The question is if I change the title or agree to change the title what happens with my rights?

A: correcting grammar and changing the title of your script will not impact your ownership of the copyright in the work. It might be worthwhile to either register the copyright in the newly titled, corrected work, or file an amendment to your existing copyright registration to reflect the changed title, and just to make sure that the chain of title to your work is clear and easy to follow.

If you make major, material changes to the story line, dialogue, or other components of the script, you’d do well to register the copyright in that new work, as well.

Consulting a lawyer is always a good idea in these situations, and doesn’t have to cost a great deal.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.

Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse

Asked and Answered: Is changing the title, setting or character details enough to avoid paying for the rights?

Gordon Firemark — Fri, 25 Jun 2010 06:00:53 +0000

Q: A playwright/filmmaker in the United Kingdom optioned a portion of my self published novel to develop into a play and short film. This playwright/filmmaker renewed the option twice over several years, with a final payment due at the end of the third year and a royalty/byline promised after production. Both contracts were signed, witnessed and notarized with money exchanged and hundreds of e-mails/letters back and forth about the
progress, funding available, etc.

Last Jan. I received a letter stating there was no more money for the project and they wouldn’t be able to renew again when the option expired.

Is it true that if only a ‘few paragraphs’, title, and basic concept are used do the purchasers still have to honor the option and does it make a difference that I’m living here in the U.S. and they are in another country? There was no specification in the contract as to how much or little they would use from the novel to make the play/film.

I recently learned that they received a grant and the project was made into a play/short film, and even entered into several contests. When I complained, they simply changed the original title, some of the character details and setting and told me they’d changed it so much they didn’t have to pay me any more money or give me credit, especially when they’d only ended up using such a ‘small amount of my novel in the end’. Though my novel has an ISBN and copyright dating back to 1998, they made the comment that ‘since I had self published they didn’t
consider me a ‘real writer’ anyway.

A: It’s not true that “a few paragraphs” can be used with impunity. Merely changing the title, setting or a few character details will not render an unauthorized use non-infringing. Where there has been a contractual relationship in the past, the existence of that contract is useful evidence in establishing that the defendants KNEW they’d need permission to use the material (however much or little is the case).

The fact that a work is self-published is irrelevant. The author of the work owns the copyright to his or her material, and using it without consent constitutes copyright infringement. Plain and simple.

The trouble is, where the alleged inf ringer is overseas, suing can be costly and inconvenient. But, it is still worthwhile to consult with lawyers both here in the U.S. and in the infringer’s home country to determine whether a lawsuit is feasible and worthwhile.

Asked & Answered: When do I discuss payment?

Gordon Firemark — Fri, 18 Jun 2010 06:00:21 +0000

Q: I am new to the screenplay business. I do not have an agent since I have not yet had anything produced and the agents that I have approached are not taking on new clients. I have written a screenplay that has been a contest winner. I have shopped around and have attracted some interest from producers. There has been discussion about re-writes and touch ups. At what point is it appropriate to discuss the payment for the screenplay? Further to this, at what point does one seek legal advice?

A: Producers love to give “feedback” on scripts, and ask the writers to re-write, revise and tweak the script before they commit to purchasing the rights. My usual advice is that writers NOT perform writing services for free, especially if the producer asking for such rewriting hasn’t yet purchased an option on the material.

The harsh reality, for many writers, though, is that producers won’t option material they feel needs work unless the writer is prepared to first make some changes. Moreover, producers may want to see whether the writer is one they will want to work with. So, writers often agree to perform a free rewrite or polish in order to entice a producer to purchase an option.

What I recommend is that writers listen to all producers’ comments and notes with an open mind, and if something ‘feels’ worthwhile, go ahead and do a little rewriting, before resubmitting the material. Otherwise, it’s appropriate to discuss business before doing the rewrite.
I’d only go-around like this once, though… after that, the producer should put some money where his/her mouth is. Purchasing an option is not a tremendous capital outlay. If a producer has some “skin in the game”, he’s more likely to push forward with the project, so don’t be shy about asking for a deal, payment, etc.

A producer who’s unwilling to pay for a script, rewrite, or whatever, is probably not that passionate about your material. Moreover, if you’re going to spend time writing, I think you’re better off writing another, new spec, rather than reworking your older material.

When should you seek legal advice? It’s never too early to establish a relationship with an entertainment lawyer. Regardless, don’t sign anything without getting some good advice. Even the simplest looking document can be loaded with traps for the unwary.

Asked & Answered: The collaborator who didn’t.

Gordon Firemark — Fri, 11 Jun 2010 06:00:50 +0000

Q: Do I have to share my Author/Writer Credit with someone who collaborated on the script, even if he never wrote one word or typed one keystroke on the script?

A: This comes down to the terms of your agreement with the collaborator, and to the definition of “collaborated”. Most dictionaries refer to collaboration as “working together”, without reference to the specific nature of such work. Many writing teams share the work of ‘creating’ ideas, coming up with dialogue, plot lines, etc., while only one member handles the ‘data entry’ part of the task. So, it’s not enough to claim that your collaborator didn’t write or type anything… if he or she contributed material to the finished product, in the form of intellectual ‘work’ then shared credit is appropriate.

BUT, if your collaborator didn’t do ANYTHING at all, it’s a different story. This, then, comes down to a breach of contract. Presumably, the agreement between the collaborators was to share the work (regardless of the actual division of labor). If one member failed to meet this obligation, then there’s an argument to be made that credit should not be shared.

Now, for writers who are members of WGA, shared credit is a trickier issue, often involving subsequent rewrites by other writers, and ultimately, it’s the producer and the WGA’s credit arbitration panel who decide who gets credit. For a good discussion of the credit arbitration process, see the May 2010 issue of Script magazine.

Either way, sharing credit may be preferable to the battle that can ensue when a collaborator feels he’s been unfairly deprived of credit. It’s unwise, therefore, to proceed without some clear resolution of the matter BEFORE the script is sold. I’ve personally represented several creators in disputes over credit. Sometimes such suits have actually derailed the sale or production of the script(s) in question. Before deciding to exclude a collaborator’s credit, it’s wise to check with your lawyer about the situation and get some good advice.

Asked & Answered: Real Events reported in the media. What rights do I need?

Gordon Firemark — Fri, 04 Jun 2010 06:00:25 +0000

Q: I read an article in a small town newspaper and felt it would make a great movie. It was about a true story that occurred one weekend to some guys on a trip. It is the kind of story you might tell some friends at dinner. It is not a story the writer spent weeks researching. He heard the funny story and wrote about it.

Also, it is the concept that I believe would make a good story. I do not plan to write the actual story that took place or claim that it is “based on a true story”. However, the basic premise would be the same. Do I need to buy the rights to this story’s premise from the newspaper or writer or people that experienced the event? Or all of them? Since I do not plan to write their actual story, do I need to buy any rights at all? At what point does writing about an event requiring buying the rights?

A: Basing your screenplay on true events, as reported in a newspaper or any other media outlet requires a careful analysis of what rights are held, and by whom.

First, the rights of the persons depicted in the story must be cleared. If the persons to whom the events occurred, or anybody they know, will be able to identify them from the story told in your screenplay, you need their rights. In practice, when the story centers around one person, the producers of a film will obtain THAT person’s rights, and require him/her to assist in obtaining any other rights that the producers’ lawyers deem necessary. (the conservative position of most lawyers is to obtain rights from all involved)

Since you’re planning to use the events you read about as a mere jumping off point, you MIGHT get away without clearing the rights, but ultimately, you will have to indemnify the buyer/producer of any film based on your script against claims brought by those you’ve depicted…You’ll also have to disclose the fact that your story is (however loosely) based on real people when you make the sale of your script… So, you may as well secure their cooperation early.

If you’re using any material that was reported by the newspaper, and which might have been uncovered by the reporter’s investigation, etc., you will likely need to get a license from the publication and/or journalist. However, if the story you’re telling is coming directly from those who experienced the events, then you probably do not need a separate license.

So, when do you get the rights? Best practice is to do so before you begin writing. Otherwise, you risk laboring on the script in vain, if the rights holder refuses to grant you a license or permission to use the underlying material. Many writers ignore this, relying on the eventual buyer of the script to clear the rights. Doing this, however, risks embarrassment if that buyer is unable to clear those rights. (in which case the writer would probably have to refund any payments received, etc.) One approach might be to put together a treatment and”pitch” the project to producers with the resources to secure the rights, and to pay you to write the script.

As always, the best advice I can offer is that you consult a lawyer who can explore the full details of the situation, and give you some specifically tailored advice.

Asked & Answered: My Film’s been infringed. What now?

Gordon Firemark — Fri, 28 May 2010 05:39:20 +0000

Q: Around 1966 I and some partners formed an independent film company and made what many consider to be one of the best horror films ever made. I was the Production Manager, and played a major role in the picture. Many concerns consider the film to be in Public Domain, market products, and rip us off. These concerns use our likenesses, dialogue, excerpted film clips, and title without our consent, permission, or monetary compensation.

How do we stop them? Would an appeal to President Obama asking him to resolve our copyright issue once and for all be an exercise in futility?

A: .Contacting the President might make you feel better, but will probably not result in any meaningful change to the situation, or more importantly to the law(s) that govern situations like this.

Your situation implicates many different legal principles, and really requires a detailed investigation into the facts and law applicable to your potential claims.

Generally speaking, though, copyright protection for films made after 1966 is still in effect. Unless the producers did something very foolish, it’s unlikely the film is in the public domain. So, assuming copyright protection remains in force, it’s really a matter of determining whether the offending activity amounts to copyright infringement. Of course, only the owner of the copyright can assert claims relating to the copyright. So, if your company has transferred ownership, then the transferee holds the key to enforcement of the rights.

Copyright infringement is the unauthorized copying, distribution, performance/display or making of derivative works based on the original work. Marketing of products is unlikely to be considered copyright infringement unless it actually involves a COPY of the film, or a portion thereof. Using quotes from a film may be a “fair use” (protected by the First Amendment guarantee of free speech) if the taking is relatively small, and has minimal impact on the market for the original film. For example a T-shirt with a 4- or 5-word quote from the movie is likely NOT a copyright infringement. Similarly, short film clips, may be considered fair use. (the complete analysis of the four fair-use factors is too lengthy to address here)

Use of likenesses of performers in a film may violate those performers’ “Right of Publicity”, which, in California, for example, prohibits the unauthorized COMMERCIAL use of a person’s name or likeness. The trouble is, not all states recognize such rights, and those that do, each handle things differently. Moreover, the measure of damages (the amount of money you can collect) may not make pursuing the case worthwhile for the performer or her lawyer to take on. Litigation, after all, is a costly pursuit.

Finally, the protection afforded by the law to film titles is very limited. Unless the title is also registered as a trademark, there’s little that can be done to stop others from adopting that title (or variations thereof) for products, merchandise, services and even, in some cases, other films.

So, the best advice I can offer is that you consult an attorney familiar with your State’s laws to investigate the situation(s) that arise, and to research the law before offering you custom-tailored legal advice.

Asked & Answered: Video/Film/recording performances of plays.

Gordon Firemark — Wed, 05 May 2010 19:40:43 +0000

Q: I work in educational theater. Every year we revisit the same topic: Filming performances. I keep telling the director and others that it is simply not legal to record a performance. The response I always hear is that they never sell the film. They are only making an “archival copy” which is given to the cast. I know it’s illegal. I know it’s specifically banned in the contract that the director signs. I’ve heard rumors of schools getting busted with huge fines, because clips showed up on You Tube. But I have no proof. What are the potential penalties? Are people schools really getting sued? Help me convince these people that they should stop.

A: It’s irrelevant whether they sell the film. They’re making and distributing copies of a derivative work of the play. That’s copyright infringement. It doesn’t matter if money changes hands. It’s NOT “archival” (which isn’t permitted anyway, under most licenses from play publishers).

The penalties for violations of these rules can exceed $150,000 per infringment, and each copy of the offending product can be considered an infringement. So, with a cast of 10, each receiving a copy, you’re talking about as much as $1.5 Million dollars. (that’s enough to put most school districts in a serious bind).

Schools and nonprofit organizations are sued ALL THE TIME over this kind of thing. They usually settle, so there’s little media coverage… but it is happening. It’s not just because videos wind up on the web….The major play publishers have ‘spies’ everywhere, and they’re reporting violations all the time.

Bottom line: It’s illegal, it’s a breach of the license agreement, and can be very costly. Also, once a play publisher catches you, they will put you on their blacklist, and never authorize another production again.

Asked and Answered: Inspired by real events

Gordon Firemark — Sun, 11 Apr 2010 06:00:38 +0000

Q: I want to write a script inspired by several real-life events in my life, but I’m wondering if I need permission from everyone involved or I can just change the events enough to make it new. If the latter, how much do I have to change so that people don’t feel like it’s their story, too?

A: If the events in question are from your real life, you’re free to tell the story, provided you do so truthfully. To the extent you embellish, dramatize, or fictionalize the story, you’ll need clearance from all other persons who are recognizably depicted in your script, before it can be produced. Since, as a practical matter, almost all “true story” films and tv shows do some amount of dramatization/fictionalization, this means that you’ll need that permission before long.

Note that I said permission will be needed from folks who are “recognizably depicted”. What this means is that if YOU are identified as yourself, then anybody connected to you in a significant way can also be identified. So, if you feature a scene with your 12th grade math teacher, and cast that teacher in an embarassing, misleading or false light, your ACTUAL 12th grade math teacher may have claims against you even if you’ve changed the names, places, etc.

So, there’s no fixed amount of change which will automatically protect you.

What some writers do is make the non-integral characters sort of “composites” of several people, or ‘types’ of people, so that no one individual can be identified as the source.

For more integral people, much will depend on how and how much they’re depicted in the script.

The good news is that ultimately, the studio, production company, or distributor will make the final decisions on whose permissions are required and whose aren’t. Still, it’s best if you go into production with all your legal ducks in a row.

The help of an experienced entertainment lawyer will ensure that you have a marketable, produce-able script. The investment you make in getting good legal advice at the outset will be far less than the expense incurred later, when you’re trying to close a sale, or release the film.